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HomeMy WebLinkAbout95-03004 ( I -... ,I .... I J i 8 rtJ I :r. D ~ ... or, ~ ,.,., ~ .... ~ ~ ~ j. ~ = . :I. ~ 5 ~ ~ :="E~M~ o ;.. III . l&J ~ .~ ~ ~ ci ~ .... 0 ~ ~ Il. :Ii ~? i'! IU ~ ~ A ~ 0 :I. r: ~ ~ ~ ~ In ~ ::I:: n~ 1- '", ,-, .s..":' "r ....... , -! 'V , c--..I ~ .r ., '1 > I~ 4 F , . )tiN " i !i1'1' I, ,.J , INTERSTATE TRICK EQUIPMENT, ) IN THE COURT OF COMMON INC. , ) PLEAS OF CUMBERLAND Judgment Creditor ) COUNTY, PENNSYLVANIA ) vs ) CIVIL ACTION - LAW ) NEW CUMBERLAND FIRE DEPT., ) NO. 95-3004 CIVIL TERM Judgment Debtor ) PETITION TO STRIKE. VACATE. OR OPEN JUDGMENT AND NOW comes the above-named Judgment Debtor (hereinafter referred to as "Defendant"), New Cumberland Fire Dept., by its attorneys, Andes, Vaughn & Bangs, and petitions the Court to strike, vacate, or open the jUdgment entered against it in the above matter on 2 June 1995, based upon the following: 1. The Petitioner herein is the Defendant, named above, the New Cumberland Fire Department. It conducts its business as a voluntary fire company at 319 4th Etreet in New Cumberland, Pennsylvania. 2. The Respondent herein is Interstate Truck Equipment, Inc., (hereinafter referred to a~ "Plaintiff") a corporation conducting business in the State of Maryland at 1500 Salem Avenue, Hagerstown, Maryland. 3. The Defendant does not, and has never, conducted business or conducted any of its volunteer operations in the State of Maryland or at any place outside the Commonwealth of Pennsylvania. 4. This dispute involves a claim by the Plaintiff for repairs it made to a piece of fire apparatus which was sold to the Defendant by Plaintiff which required corrective work because it was defective when sold. 5. Plaintiff originally contacted Defendant within the Commonwealth of Pennsylvania regarding the sale to the Defendant of the fire apparatus which is the subject of this disputo. All significant negotiations and communications regarding the original purchase of the equipment, the defects later found in the equipment, and the necessity of and arrangements for repair of those defects were conducted in Pennsylvania. 6. The Defendant has no substantial contacts with the state of Maryland. 7. The courts of the State of Maryland have no jurisdiction over the Defendant. B. The Defendant has good and valid defenses to Plaintiff's claim, which include the followingl A. There was no agreement between the Plaintiff and the Defendant for the Defendant to be paid for the repair work it undertook to do. D. Defendant never represented that it would pay, and never consented to pay, Plaintiff for the repair work which was done. C. Plaintiff was obligated to do the repair work because it has sold a defective product to Defendant. D. The charges which the Plaintiff has asserted for the repair work are excessive and unreasonable. 9. The jUdgment entered against the Defendant by the Plainitff in the courts of Maryland is invalid and ineffective. 9. The Defendant is involved in a charitable activity, providing fire and other emergency services and protections to the citizens of New Cumberland and Cumherland County. Execution against any of the assets of the Defendant will jeopardize its ability to continue those charitable services. A stay in any action to enforce the judgment entered in this matter will not jeopardize the Plaintiff's rights but will give the Court an opportunity to hear the arguments in this case and resolve those rights correctly without prejudice to either party. WHEREFORE, Defendant petitions the court to strike, vacate, or, in the alternative, open the jUdgment entered against it by the Plaintiff in this matter and to stay all proceedings pending resolution of this matter. en lJ1 .. ", :'1::- u_ .r ,-. y> , ,J . . :., , . ~ . i! . ~ ... en ID~ Po O;j <J ....< ~~~~~~ H l'l => .. ~ci S' 0 <J ... .. .. ... .... 0 ~jUd tj 'tI ~ ... <J .0 ~ .. 'tI <J mU u . ij"" Ul ~ ~~&& ... l> ....... ~ p .. P <J <J <J (-< 13 tl, ~t ~~ffi ~ . ~ ~I ..., ~.., ~....p.. u ~So .!.l z ~p..~ hIM' /. 11',1"':' \11"111I \~ .11 1..,\ 11)',1 INil MAlt. hill( 11 w^vrn~)unIHI, I'A If.'f,1! 111'4 171 '1 ffi~' 1/11 t 11111~fn \Iii!!.! . . . -- VB. '(I No. (. I ) (1(.>'1 'I ,,{ IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT PENNSYLVANIA - CUMBERLAND COUNTY BRANCH INTERSTATE TRUCK EQUIPMENT, INC. , Judgment Creditor Civil Action - Law NEW CUMBERLAND FIRE DEPT., Judgment nebtor PRAECIPE TO THE PROTHONOTARY I Please enter the foreign judgment in the above-captioned matter. Datel i ...... ~,.. DISTRICT COURT OF MARYLAND FOR li",1i i "1:1 "" ''''"11 \ Cll)/CUllnl) Located al If, \,1 \.JoI!'1hl 11 I!, I 1111 Sl Il.lgl''''dl\\vll Nil lli/ill COlin Addrtu Case No, 112- IhW,-ll2 111\ ,'.rH.,'I." Tru\k Equlp"",'lIl 1111, N"H L\l\lJ\!",-1 dllll 1'1J'l' 11"1'1 . ~s, ,!Ill 1'''111:111 ~I. COWlI) Nr '~" I:W,nlll' r ,I ,\1\\' .1'1\ .1 l)7ll o.'tnd.anl ,D,\l\~..~.,,<.J,\',ln, '\V\'.. lI.,II\\',r.Hv\'o!l.l..f\l.I., nll.ll.. P1alnbft' CERTIFICA nON OF JUDGMENT UNDER ACT OF CONGRESS I HEREBY CERTIFY that the auached is \rUe and UICI cory of the docket entrie~ of this Courr in Ihis casc. In witness whereof I hereto set my hand and affix the seal of th~_ District Coun of Maryland, I ,~~l,2,~?,~'.... . (. "~)'Lf.( IV (7.. flAc(/()C, Dill / Clrrk' Uu} . A'Oi;..ki,.... /, .' i /l STATE OF MARnAND. _ .,.\i:I~hln~toI1CJ)Ul1t Y . . . . ........ I HEREBY CERTIFY that the foregoing allestation of J~,dy"^ 1I1'"k,' Clerk of the District Coun of Maryland is in due fonn and by Ihe , ,lowil: , ............, l-12-ll1 D... J~t ,!tHinI' p "~'(~';,T' Spl'lKll STATE OF MARnAND.\.J,'~I1I,l1gt~~I1.c\~'",lly,.. ....", ......10 wit: I HEREBY CERTIFY that the Honorable .,I.udg". R. N,J)",I ..s.p,'.',lI,',','", ,........'"" who has certified and IIJlled the above allestalion. was at the lime of so doing a judge of the District Coun of Maryland. duly commluloned and qualified, and that as to all acts done by him In that capacity, full faith and credit are due and OUlhtto be Biven. and thaI his IllnatUre therelo is lenuine, In wilDe.. whereof. I hereunto sublcribe my name and affIX the lCaI_~f the District CO,urt 0) Marylat ,. .......'712,7ll), I .)~(!l(j.(/ L (u.l(\-.,.....,., Dill / I e..... Inti, 1\ J) r.lk.. I , . DCICV 50 la...11131 CERTlnCATION OF JUDGMENT UNDER ACT OF CONGRESS ..- wl.TrueT: t I LOCATION. 02 CASE NUM. 0003685-92 COMPLAINT NUM. 00' fiLED. 09/22/92 INIT, CLAIM: ~UOGMENT ENTERED FOR THE PLAINTIFFISI ~OAVIT DEFAUL T CONSENT CONFESSED fOREIGN TRIAL ~UDClMENT PDSSESSIDN 09/22/92 0'/06/93 01/08/93 0'/08/93 01/08/93 01/25/93 03/25/93 03/29/93 03/29/93 03/29/93 05/15/93 OS/25/93 OS/25/93 OS/25/93 08/11/93 08/'2/93 08/12/93 08/12/93 081 '8(93 TRIAL DOCKET PAGE: DATE: ROOM: TIME: . 01/31/94 01 09:00 AM \7,186,00 COSTS & FEES: CONTRACT $48,00 PLAINTIFF VS. DEFENDANT INTEPSTATE TRUCK EOUIPMENT INC NEW CUMBERLAND FIRE DEPT SERVE' DEAN ~UR'. PRESIDENT 319 FOURTH STREET NEW CUMBERLAND PA 17'70 .500 SALEM AVENUE HAGERSTDWN MO = 1740 BAKER, G CLAIR JR ATTDRNEY FOR PLAINTIFF ..~) - ATTORNEY FOR DEFENDANT DJG ~UDGMENT PRINCIPAL""" ,$ 7/gt.,.t)() PRE-~UOGMENT-INTEREST". ,$ TOTAL ~UOClMENT,..""", ,$ COSTS, , , , . , , , , , , , , , , . . . , ,$ 4goJ .JUDGMENT DENIED THE PLAINTIFF(SI IN FAVOR OF THE DEFENDANT OTHER, , , , , . , , , , , , . , , . . , , ,$ ATTORNEY'S FEES,.""." ,$ ~ RATE POSSESSION OF PROPERTY CLAIMED, VALUED AT $ IS AWARDED TO THE TOGETHER WITH DAMAGES OF $ FOR THE DETENTION THEREOF, CONTRACTUAL RATE POST-~UOGMENT INTEREST AT $ REPRESENTING THE VALUE DF FOR ITS DETENTION IS AWARDED TO THE FOR, PLUS DAMAGES OF $ ~UDGE ID. DATE. 01/3./94 INITIAL AFEIDAVIT CASE ElLING SUMMONS RENEWAL REOUESTED B' ATTDRNE. FOR PLAINTIFF MERIT TRIAL SET FOR 12/21/92 POSTPONED NOTICE OF TRIAL POSTPONEMENT SENT TO ALL PARTIES NOTICE OF SUMMONS RENEWAL SENT TO THE PLAINTIFF SUMMONS RENEWAL NON-EST SUMMONS RENEWAL REOUESTED B' ATTDRNE' FOR PLAINTIFF MERIT TRIAL SET FOR 04(05/93 POSTPONED NOTICE OF TRIAL POSTPONEMENT SENT TO ALL PARTIES NOTICE OF SUMMONS RENEWAL SENT TO THE PLAINTIFF SUMMONS RENEWAL REOUESTED B' ATTORNE' FOR PLAINTIFF MERIT TRIAL SET FOR 07(12193 POSTPONED NOTICE OF TRIAL POSTPONEMENT SENT TO ALL PARTIES NOTICE OF SUMMONS RENEWAL SENT TO THE PLAINTIFF SUMMONS RE~EwAl ~EOUESTEO Bv ATTORNEi FOR PLAINTIFF MERIT TRIAL SET FOR 08/23193 POSTPONED NOTICE OF TRIAL POSTPONEMENT SENT TO ALL PARTIES NOTICE OF SUMMONS RENEwAL S[~T TO THE PLAINTIFF SUMMONS RENEwAL NON-E~T ANOTHER DEFENDANT NOT SERVED -CLK ON DEFENDANT ANOTHER DEFENDANT NOT SERVED -CLK ANOTHER DEFENDANT NOT SERVED -CLK ANDTIIER DEFENDANT NOT SERVED 'CLK Of, DEF ENDANT ( ~.;.~\ ">- (:)~. ,... ,_ (.-'t-.~ ? r-. ~ . ,,;": 1....'" -::--.; \' ':> "'" ~-> 7- ";>- to ~ I- .' - u> lJ' " , ',-" l.\ ~ r- c;..... t-_ ~ l....A IN THE COURT or COMMON PLEAS or THE 9TH JUDICIAL nISTRICT PENNSYLVANIA - CUMBERLAND COUNTY BRANCH INTERSTATE TRUCK EQUIPMENT, INC. , Judgment Creditor civil Action - Law vs. No. 95-3004 Civil Term NEW CUMBERLAND FIRE DEPT., Judgment Debtor NOTICE TO PLEAD To New Cumberland Fire Department c/o Samuel L. Andes, Esquire 525 North Twelfth Street Lemoyne, PA 170431 You are hereby notified to file a written response to the enclosed Plaintiff's Answer and New Matter to Petition to Strike, Vacate, or Open Judgment within twenty (20) days from service hereof or a judgment may be entered against you. ,j /.////' -' ~j'/ /" A I ( '" ___- By: </~.'~tA : f/.-/f", ",- MICHAEL J. S, ESQUIRE Attorney for nefendant IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT PENNSYLVANIA - CUMBERLAND COUNTY BRANCH INTERSTATE TRUCK EQUIPMENT, INC. , Judgment Creditor Civil Action - Law vs. No, 95-3004 Civil Term NEN CUMBERLAND FIRE DEPT., Judgment Debtor ANSWER AND NEN HATTER TO PETITION TO STRIKE. VACATE. OR OPEN JUDGMENT COMES NOW, the Judgment Creditor, Interstate Truck Equipment, Inc., (hereinafter referred to as "Respondent"), by and through its attorney, Michael J. Toms, Esq., and files this Answer and New Matter to petition to Strike, Vacate or Open Judgment, stating as follows: 1. Admitted. 2. Admitted. 3. After reasonable investigation, Respondent is without knowledge or information sufficient to form a belief as to the truth of the averments concerning Petitioner's volunteer activities. However, Respondent states that the voluntary operations of the fire department are not the subject of this dispute. Rather, it is the contractual obligations of the Petitioner, all of which occurred in the State of Maryland, which were, and are, the subject of this suit. 4. Respondent admits that the claim involved repairs to a fire truck sold by Respondent to Petitioner. Respondent denies that the corrective work was required because the fire truck was defective when sold. The fire truck was sold in an "As Is" condition. 5. Respondent denies that all significant negotiations and communications regarding the original purchase of the equipment or any repair work were conducted in Pennsy 1 vania. Specif ically, Respondent states that, petitioner solicited Respondent for purchase of the truck, the contract was entered into, and all repairs and refurbishing of the fire engine were done on site in the State of Maryland. All testing, which teDting was independently requested and contracted for by Petitioner, was also done entirely within the State of Maryland. 6. Respondent denies that Petitioner has no substantial contacts with the State of Maryland. For additional response, please refer to the answer to paragraph 5 above. 7. 1~is avermellt is a conclusion uf law tu which no response is rsquirod. 1I0wever, Respolldollt denies that the State of Maryland has no jurisdiction over pelltionel' and spocifically states that in civil Case No. 3665-92 fi led ill the Diutrlct COUI-t for Washington County, Maryland, Petitioner had a full and complete opportunity to raise the jurisdictional issue. An Affidavit Judgmellt was entered when Petitioller failed to appear at trial and raise any jurisdictional issue. Lack of jurisdiction is an affirmative defense that must be raised at the tillle of trial ill the State of Maryland. 6. Respondent denies that Petitioner has good and valid defenses to Rcspolldent's clailll, specifically: a. Respondent denies that there was no agreement between Respondent and Petitioner for Respondent to be paid for the repair work it undertook to do. Respondent believes, and therefor avers, that Petitioner made a payment in the amount. of $170.00 towards the outstanding invoice, said payment evidencing such an agreement. b. Respondent denies that Petitioner represented that it would never pay, or consent to pay, for the repair work which was done. Specifically, Dean Jury, then President of Petitioner, represented unto Respondent that Petitioner would pay for the repair work, c. Respondent denies that it was obligated to do the repair work. The repair work was mandated by the testing company hired by Petitioner. d, Respondent denies that the charges for the repair work were excessive and unreasonable. Specifically, Petitioner, through its agent, Dean Jury, requested that Respondent consider reducing its bill for the repair work on March 6, 1992. The invoice for that repair work was reduced from $6,000.00 to $7,186.00 as a result of Petitioner's request. The bill was reduced based on the volunteer nature of the fire company's operations. 9. This averment is a conclusion of law to which no response is required. Respondent denies, however, that the judgment entered against Petitioner is illvalid alld ineffective and asserts that the judgment is entitled to full faith and credit by the Commonwealth of Pennsylvllnia. 10. After l'easonable investigatlon, Respondent is without knowledge ell' informallon sufficient to form a belief as to the truth uf the averments. NEW HATTER 11. Respolldent believes, and therefor avers, that all matters related to the services provided by Respondent to Petitioner occurred in the State of Maryland. 12. A copy of the letter dated October 18, 1993, from Dean Jury to G. Clair Baker, Jr., Esq., attached hereto as Exhibit A, acknowledges notice of the law suit and of the original trial date of December 6, 1993. 13. A copy of the Affidavit Judgment entered by the District Court for Washington County, Maryland is attached hereto as Exhibit B. It is noted that Petitioner failed to appear and raise any jurisdictional issue. 14. The Maryland judgment was transferred to the Commonwealth of Pennsylvania for enforcement pursuant to the Uniform Enforcement of F'oreign Judgments Act. 42 Pa. C.S, Section 4306. 15. Petitioner had a full and complete opportunity to litigate the merits and the jurisdictional issue in the District Court for Washington County, Maryland, when suit was filed. Since Petitioner failed to take advantage of that opportunity, it cannot now collaterally attack the judgment in a sister state. Pennsylvania must give full faith and credit to Maryland's judgment. 16. Jurisdiction for Petitioner's claim lies in the courts of the State of Maryland. WHEREFORE, Respondent respectfully requests that this Honorable Court dismiss the Petition for lack of jurisdiction, allow the judgment to stand as transferred from Maryland, lift any stay of further proceedings in this matter, and award reasonable counsel fees to Respondent for having to appear and defend this dilatory and vexatious Petition. I ,t., t /' . -~-:'/.'<'ft -! (~<.~/ Michael ,J. ;t'1)i1\s, Esquire Attorney for Respondent 1651 East Main Street Waynesboro, PA 17268 (717) 762-7877 lOt 46736 NEW CUMlJEllLAND FIRE DEPARTMENT A Nonprolll Corpol.llon 319 FOURTH STREET, NEW CUMBERLAND, PENNSYLVANIA 17070 FOUNDED 18118 \'hhllllel'/'s Sr,/olling UIe LiIll/lIlllllily Since 1895 October 10, 1993 G. Clair Baker, Jr, PA Room 216 13B West Washington street Hagerstown HD 21740 Dear Hr. Baker: I recently received your certified mail containing another Writ of Summons establishing a trial date of December 6, 1993 for the complaint arising from the repair of the damage to our seagrave Aerial Ladder Fire Truck. When I received this mail in an envelop with your return address, I had hoped you were responding to the attached correspondence that I had faxed to the Interstate Truck Equipment, Inc. The New cumberland Fire Department remains interested in exploring ways to settle this dispute. Our initial settlement offer of $2,847.00 remains valid. I would appreciate the opportunity to discuss this with you. Sincerely, nean R. Ju Pres ident CCI Interstats Truck Equipment, Inc. EXHIBIT A DISTRICT COURT OF MARYLAND FOR WASHINGTON COUNTY 1102 35 WEST WASHINGTON ST (VI HAGERSTOWN MD 21740-4867 C 1 V I L CA SE NO. !11~1~1~!IIIJII~~03685 COMPLAINT NO.: 001 - 92 TO: BAKER, G CLAIR JR 138 W WASHINGTON STREET HAGERSTOWN . MD 21740 INTERSJ'ATE TRUCK EQUIPMENT INC VS. NEW CUMBERLAND FIRE DErT DATE: 01/31/94 AFFIDAVIT JUDGMENT ENTERED ON JANUARY 31, 1994 THIS COURT ENTERED AN AFFIDAVIT JUDGMENT IN FAVOR OF THE PLAINTIFF IN THE ABOVE CASE IN THE AMOUNT OF $7186.00, ATTORNEY I S FEES OF $0.00. COSTS OF $4B.00 AND PRE-JUDGMENT INTEREST OF $0,00 PLUS POST-JUDGMENT INTEREST AT LEGAL RATE. THE DEFENDANT HAS UNTIL FE8RUARY 30. 1994 TO FILE A MOTION TO VACATE THIS JUDGMENT, STATING A FACTUAL AND LEGAL BASIS FOR A DEFENSE, THE PLAINTIFF TO ENFORCE THIS JUDGMENT MAY FILE FOR A LIEN ON ANY REAL PROPERTY OWNED BY THE DEFENDANT. R 1 009727A EXHIBIT B Judgment Crcditor No 95-)004 Civil Tcrm IN TilE COlIRT OF COMMON I'LEAS Oil 'I'm: 9'1'11 JIIUI(,\AL U1STRICT I'ENNSYLVANIA - C11I\tIIERI.ANI) COl I NT\' IlRANCII IN1't:RSTAn: TRl/CK EQI1I\'l\n:NT. Civil Action - Law INC., vs N.:W Cl/I\UU:RLANI) IIIR.: 1)[1''1'.. Judgmcnt Debtor PRAt:CIP.: TO TIlE PROTIIONOTARY Please mark the above-captioned matter settled and discontinued, with prejudice, TOMS & EVANS ! I . ' By .-'/.~:-;!A/!r~- Michael 1. Toms Attorney for Plaintilf . , n , , ;~ 1 , f.' 'I . '. ~ ; ,'r) t!; I ~J t...,; , '. fi.> ](', , , -'I I "' !(\ . . Irll . ".'1 :'/ (II .....